Citation Nr: 1802044	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  13-17 908	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss disability.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to an increased rating for lumbosacral strain with recurrent muscle spasm, currently evaluated as 20 percent disabling.

4.  Entitlement to an increased rating for left knee disability (anterior cruciate ligament reconstruction and degenerative joint disease), currently evaluated as 10 percent disabling. 

5.  Entitlement to increased rating for chronic sinusitis status post septal repair, currently evaluated as noncompensable. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Wishard, Counsel


INTRODUCTION

The Veteran had active military service from July 1982 to November 2009.  

These matters come before the Board of Veterans' Appeals (Board) from May 2010 and January 2016 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California.  

In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.  The record was held open for an additional sixty days for the Veteran to submit additional evidence if he desired to do so. 

The issues of entitlement to increased ratings for the lumbosacral disability, left knee disability, and chronic sinusitis disability addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  In giving the benefit of the doubt to the Veteran, the Board finds that service connection is warranted for bilateral hearing loss disability.

2.  In giving the benefit of the doubt to the Veteran, the Board finds that service connection is warranted for tinnitus. 


CONCLUSIONS OF LAW

1.  The criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385 (2017).

2.  The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Legal Criteria

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

For some "chronic diseases," like sensorineural hearing loss and tinnitus, presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a).   

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

Under 38 C.F.R. § 3.310, service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Analysis

Bilateral Hearing Loss 

The claims file includes evidence that the Veteran had normal hearing acuity upon entrance into service, and that he had abnormal hearing at the 4,000 Hz level upon separation from service; however his hearing acuity did not quite rise to the level of a hearing loss disability for VA purposes at separation from service.  Therefore, the issue is whether the current hearing loss disability is causally related to active service.

The Veteran's service treatment records (STRs) include his September 2007 Report of Medical Examination for retirement purposes which revealed that relevant pure tone thresholds, in decibels, were as follows:   





HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
15
20
35
LEFT
5
0
15
15
30

In Hensley v. Brown, 5 Vet. App. 155, 157 (1993), the Court noted that the threshold for normal hearing is from 0 to 20 decibels, and a higher threshold level indicates some degree of hearing loss.

There is no objective clinical evidence of hearing loss disability for VA purposes until several years after separation from service.  A November 2015 private examination report reflects hearing loss disability.  

The Board, in giving the benefit of the doubt to the Veteran, finds that service connection is warranted.  While the 2015 examiner noted a shift in hearing since service and found the Veteran's hearing loss unrelated to an event in service, the VA examiner also found that the Veteran's progressive hearing loss in service is at least as likely as not due to military service.  Moreover, the clinician opined that the Veteran had progressive hearing loss which had its onset in service.  The Board takes this opinion to indicate that his hearing loss would continue to progress after service. 

The Board acknowledges the VA examiner's opinion that the Veteran has inconsistent readings and a non-organic element to his hearing loss as his 2015 test responses suggest he would be unable to hear or respond to questions, although he was able to do so with visible difficulty.  Nonetheless, the examiner did note that the Veteran had visible difficulty in hearing the examiner; that he did not hear his name called in the waiting room; that he was intently focused on face and reading lips while talking to the tester; and that he would ask for repetition when he heard incorrectly.  Further, even taking into consideration the non-organic element, as his Hertz results ranged from 70 to 90 during the December 2015 testing, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's organic hearing loss at least meets the standard of VA hearing loss disability of 40 Hertz at one of the required levels for service connection in both ears.

Thus, in giving the benefit of the doubt to the Veteran, the Board finds that service connection for bilateral hearing loss disability is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 

Tinnitus

The Veteran reports that he has tinnitus which he believes is causally related to service.  A December 2015 VA examination report reflects that the Veteran has tinnitus which is less likely as not a symptom of his hearing loss and/or military noise exposure, but is instead highly likely due to anti-inflammatory medications and other prescriptions associated with tinnitus.

The Veteran is in receipt of service connection for a left knee disability and a low back disability.  A 2010 VA examination report reflects that the Veteran takes Motrin (i.e. ibuprofen) approximately four times a week for his knee and back pain (a November 2015 record reflects that the Veteran is allergic to Motrin).  The Board takes judicial notice that ibuprofen is an anti-inflammatory medication.  In addition, a February 2014 record reflects that the Veteran's back pain was treated with over-the-counter ibuprofen.  A February 2015 VA clinical record reflects that the Veteran had full range of motion of the left knee without pain but that he should continue ibuprofen for knee pain.  Records also reflect that the Veteran has been prescribed anti-inflammatory nasal sprays for nasal allergy.  The 2010 VA examination report reflects that he takes Allegra for his service-connected chronic sinusitis.  

As the Veteran is taking anti-inflammatory medication for service-connected disability and the VA examiner opined that the Veteran's tinnitus is highly likely due to anti-inflammatory and other medications, the Veteran's tinnitus is secondary to service-connected disability.

Based on the foregoing, and in giving the benefit of the doubt to the Veteran, the Board finds that service connection for tinnitus is warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 


ORDER

Entitlement to service connection for bilateral hearing loss disability is granted.

Entitlement to service connection for tinnitus is granted.



REMAND

Lumbosacral strain with recurrent muscle 

The Veteran had a VA examination for his back disability in 2010 at which time he had flexion to 85 degrees.  Subsequent records reflect that the Veteran reported a worsening of symptoms.  A March 2014 VA record reflects that the Veteran reported lower back pain worsening in the last few weeks.  Additional records in 2014 reflect that the Veteran reported that he could not exercise as much due to back pain and that he has "terrible back pain".  A May 2014 VA physical therapy note reflects that the Veteran had flexion to 20 degrees before significant pain, and extension to 0 degrees with low back pain reproduced.  It was noted that he had antalgic gait "due to rigid appearing back".  A December 2014 VA clinical record reflects that the Veteran reported worsening of back pain "a couple years ago, especially while at his desk job working for the IRS."  The Veteran reported that he now has "debilitating pain with all movements."  Upon examination, he had decreased range of motion.  The Veteran testified at the 2017 Board hearing that his back was examined in 2015; however, this does not appear to have been a VA examination for compensation purposes as it does not appear that he was scheduled for such, it is not referenced by the RO, and no such report is of record. 

Based on the foregoing, the Board finds that the Veteran should be scheduled for a VA examination to determine the severity of his back disability.  See Snuffer v. Gober, 10 Vet. App. 400 (1997) to include findings consistent with Correia v. McDonald, 28 Vet. App. 158 (2016) (regarding testing for range of motion) and Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017) (regarding flare-ups).  In addition, the examiner should, if reasonably possible, provide a retrospective opinion as to the 2010 findings.

Left knee disability  

The Veteran had a VA examination for his knee in March 2010 at which time, he had stable ligaments, and range of motion from 0 to 85 degrees.  A February 2015 VA clinical record reflects that the Veteran complained of achy pain with weightbearing for several months, and that his knee occasionally buckles.  Upon examination, he had full range of motion without pain.  A December 2015 DBQ report reflects that the Veteran had left knee flexion to 60 degrees and extension to 0 degrees.  The report notes that flexion would be limited to 55 degrees during a flare-up.  The report also notes that the Veteran did not have a history of lateral instability, and had no instability upon testing.  The report does not differentiate between active and passive range of motion, and weightbearing and non weightbearing, as generally required under 38 C.F.R. § 4.59 as interpreted by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016)  

At the 2017 Board hearing, the Veteran's representative asserted that the Veteran's knee has started to affect his gait and mobility, swells up, and that he has instability.  The representative also cited to a November 21, 2016 clinical record (see Board hearing transcript, page 7); however, that record is not associated with the claims file.  (In addition, although the May 23, 2017 Supplemental Statement of the Case reflects that VA records through October 28, 2017 had been reviewed, this is chronologically impossible as October 2017 comes after May 2017.)

Based on foregoing, updated all VA and/or private treatment records from January 1, 2016 to present should be associated with the claims file, and the Veteran should be scheduled for a VA examination to determine the severity of his left knee disability.  In addition, the examiner should, if reasonably possible, provide a retrospective opinion as to the 2015 and 2010 findings. 

Chronic sinusitis status post septal repair 

The Veteran underwent VA examination of his sinuses in March 2010.  It was noted that the Veteran had "partial blockage of the left side."  The Veteran testified at the 2017 Board hearing that the left side nostril is "completely blocked off" (see Board hearing transcript, page 9).

Based on the foregoing, VA records may be useful in determining if the Veteran has had any incapacitating episodes requiring antibiotic treatment.  

Accordingly, the case is REMANDED for the following action:

1. Attempt to associate with the record VA and private clinical records for the Veteran's back, left knee, and sinus disabilities from January 1, 2016 to present. 

2.  Thereafter, schedule the Veteran for an examination to determine the severity of his service-connected disabilities of: a.) the lower back; and b.) the left knee.

i.) With regard to the lower back, the examiner should specifically test any pertinent ranges of motion in active motion, passive motion, weight-bearing, and non-weight-bearing.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 

ii.) The examiner should also estimate the functional loss due to reported flare-ups after eliciting information from the Veteran with respect to the severity, frequency, duration, precipitating and alleviating factors of any flare-ups, and the Veteran's estimation of the effect of flare-ups on his functional impairment.

iii.) The examiner should also review the VA examination report from March 2015, and if reasonably feasible, provide a retrospective opinion regarding the extent of the Veteran's disability at that time in terms of passive, active, weightbearing, and non-weight-bearing range of motions as well as estimating the functional loss due to any reported flare-ups at that time.  

iv.) With regard to the left knee, the examiner should specifically test any pertinent ranges of motion in active motion, passive motion, weight-bearing, and non-weight-bearing.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 

v.) The examiner should also estimate the functional loss due to reported flare-ups after eliciting information from the Veteran with respect to the severity, frequency, duration, precipitating and alleviating factors of any flare-ups, and the Veteran's estimation of the effect of flare-ups on his functional impairment.

vi.) The examiner should also review the VA examination reports from March 2010 and December 2015, and, if reasonably feasible, provide a retrospective opinion regarding the extent of the Veteran's disability at those times in terms of passive, active, weightbearing, and non-weight-bearing range of motions as well as estimating the functional loss due to any reported flare-ups at those times.  

3.  Following completion of the above, readjudicate the rating issues on appeal.  If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs